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How
to TAKE OUT CRIMINAL CHARGES: Use
the
Criminal
Courts
As a victim of
domestic violence, stalking, or sexual assault you can bring criminal
charges, which will be prosecuted by the State of North Carolina through the District Attorney’s
office. The purpose is to punish
the person who is abusing you for breaking the law. This is different
from providing you with a civil protective/restraining order.
To start a criminal case, you
should…
1. REPORT THE CRIME AS SOON AS POSSIBLE
If you can get to a telephone, call the police. The police must respond to your
call. If the police witness the
assault, they are required by law to make an arrest on the spot. Of course, you should never remain in a
place of danger in order to allow the police to witness the
violence. They can make an arrest
even if they don’t witness it if they have enough evidence to believe an
assault occurred. This is called
“probable cause.”
2. GO TO THE MAGISTRATE’S OFFICE
If the police do not witness the assault, and do not
find “probable cause,” you may have to go to the Magistrate’s Office at
the County Detention Center
to file charges. [Map] You
will need to describe to the magistrate what happened to you and take
along with you any witnesses to the domestic violence/stalking and any
evidence of injury or abuse, including pictures, torn or blood-stained
clothes and medical reports. Upon
hearing your sworn testimony, the magistrate may issue a criminal summons
or a warrant, even if you do not have physical evidence of abuse. When a warrant or summons is issued, it will be
given to a Law Enforcement Officer to be served on the defendant.
3. KNOW THE CRIMES
It might be helpful for you to know what kinds of
crimes the person abusing you could be charged with. There is no crime in North Carolina that is called
“domestic violence.” The crimes
could be one or more of the following crimes.
·
Rape
And Sexual Offense
A person is guilty of raping you if they have vaginal
intercourse with you by force and against your will. If the person that rapes you uses or
displays a dangerous weapon, causes serious personal injury on you, or is
aided in the crime by one or more other persons, the crime is first
degree rape and the abuser may be sentenced to life imprisonment. A person is guilty of a sexual offense
against you if they force you to have sexual activity (other than vaginal
intercourse) by force and against your will.
·
Assault
(can be a
misdemeanor assault or a felony assault)
Misdemeanor assault is an act or an attempt, with
force and violence, to do immediate physical injury to you and to put you
in fear of immediate bodily harm.
The assault will result in a more serious penalty if the person
who is assaulted is a child under 12, or, if a male over 18 assaults a
female. The name of that crime is
“Assault on a Female.” A person
who assaults you with a deadly weapon with intent to kill and/or cause
serious injury on you has committed a felony assault, which is more
serious than a misdemeanor and will probably result in a more serious
penalty.
·
Domestic
Criminal Trespass
It is important to understand that domestic criminal
trespass can happen only after you and your former partner have begun
living at separation and after you have asked him or her not to come to
your residence, or, if he or she refuses you request to leave your
residence after you separation.
·
Communicating
Threats
A person is guilty of communicating threats against
you if, without lawful authority, he or she threatens to physically
injure you or damage your property, the threat is spoken or in writing,
and is made in such a way that it would cause a reasonable person to
believe that it is likely to be carried out (and you actually believe
that the threat will be carried out).
·
Stalking
The offense of stalking occurs when a person willfully
and continually follows you or is in your presence without legal purpose
and with the intent to cause emotional distress to you by placing you in
reasonable fear of death or bodily injury. To be illegal, the stalking must occur
more than one occasion.
·
Harassing
Phone Calls
Using profane, indecent or threatening language
against you over the telephone or on your answering machine is
illegal. This includes annoying or
harassing you by making false statements over the telephone or by
repeated calling.
TIPS AND POINTERS FOR THE CRIMINAL TRIAL
·
The
Court Date
Make sure you know the trial date. You will need to be present in case the
prosecutor needs you to testify about what happened. The
magistrate will provide you with the courtroom, date, and time that you
are to appear for trial.
·
The
District Attorney is Your Attorney
You do not need to hire an attorney since the district
attorney represents your interests.
You may contact the District Attorney’s Office before the trial
date to discuss the case and the evidence that you will be able to
present. If there are any witnesses
to the domestic violence, stalking or sexual assault that was committed
against you, you should let the district attorney know as soon as
possible and request that they be subpoenaed to appear at the trial. You should give the district attorney
the names and badge numbers of police who arrested your abuser/stalker or
who responded to your call. Their phone number and address is provided
under Service Agencies.
·
Possible
Continuances
Criminal cases are often continued for several weeks
or even months in order to allow the abuser-defendant to seek counseling,
to hire an attorney or to subpoena witnesses. It is important to keep track of the
date on which the case is scheduled to return and, once again, to go to
court at the appropriate time that day.
·
The
Punishment
If the person abusing/stalking you (the defendant) is
found guilty, the punishment will depend on the circumstances of the
case. The decision is up to the
judge, but the judge will consider the district attorney’s recommendation. Depending on the type of crime and
background of the abuser, the defendant could be sentenced to a long
prison term, even up to life imprisonment. In the typical domestic
violence/stalking case, however, the defendant will be found guilty of a
misdemeanor and will receive a suspended sentence (which means he won’t
have to serve the sentence unless he violates certain conditions), a fine
and/or probation. Depending on the
circumstances of the case, you may want to ask the court to order the
abuser to go to an abuser treatment program, substance abuse counseling
and/or to stay away from you.
1.
If you
do not appear on the day scheduled for trial, your case may be
dismissed. Also, you may be
ordered to pay court costs.
2.
Be
present and ready to have all witnesses available on short notice. Cooperate with the district attorney
and tell him or her everything you can remember about the domestic
violence against you.
3.
If the
abuser attacks you or stalks you again (after he or she has been found
guilty), you can take out another warrant for their arrest and should
report the attack to his or her probation officer.
Know the Court Date. . . .Show up on time!
The District Attorney is YOUR attorney. . . .Cooperate with
him/her.
Your case very possibly MAY BE continued
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